Wrongful Death Lawsuits in Illinois

A family member was killed—maybe by a careless driver or a dangerous product—and you're thinking about a wrongful death claim. But you have questions about Illinois law. What do you have to prove to win your case? Who's allowed to sue? What kinds of compensation ("damages") are you allowed to collect? How much time do you have to file your lawsuit?

After a quick introduction to wrongful death claims generally, we turn our attention to the specifics of Illinois law. We'll walk you through several key provisions of the Illinois Wrongful Death Act, answering those questions and more.

What Is a Wrongful Death Claim?

A wrongful death claim is a claim for money damages arising out of the unlawful killing of a person, sometimes called the "decedent." Every state has a wrongful death law on its books. If you're looking to bring a wrongful death insurance claim or lawsuit, that law will be your starting point. Because the right to bring a wrongful death case arises from state statutes, you must closely follow the statutory requirements or your case can be thrown out of court.

What Is a Wrongful Death?

The term "wrongful death" is a catch-all for the unlawful killing of a person. For purposes of a wrongful death claim, what usually matters is that a death occurred, not so much how it happened. Death might be caused, for example, by an intentional act like a battery, by negligently running a red light or failing to remove accumulated ice from a sidewalk, or by medical malpractice. When death results from another's intentional or negligent wrongdoing, a wrongful death claim is possible.

It Might Be a Crime, Too

The same act that gives rise to a wrongful death claim might also be a crime. Suppose Mike and Dave are neighbors who don't get along. One day after a heated argument, Mike pulled a handgun and shot Dave, killing him. Mike will be prosecuted by the state for murder or manslaughter, charges that are likely to land him in prison. Dave's surviving family members can sue Mike to collect wrongful death damages, too.

Don't Confuse Survival and Wrongful Death Claims

A wrongful death claim compensates a decedent's surviving family members for their damages, like loss of financial support and loss of the decedent's companionship and affection. The "meter" on those damages starts running at the moment of death, and it continues for what would have been the decedent's life expectancy had death not happened.

A survival action, by contrast, is brought by the decedent's estate to recover damages the decedent suffered up to the moment of death. For example, say Karen was catastrophically injured in a fire caused by a defective product. She was hospitalized for several weeks before succumbing to her injuries. A survival claim would compensate Karen's estate for Karen's damages—things such as medical expenses, lost earnings, and conscious pain and suffering—from the date of her injuries up to the date of her death.

Because they're meant to compensate for different injuries and damages, both wrongful death and survival claims might follow from the same death.

How Does Illinois Law Define "Wrongful Death"?

An Illinois wrongful death occurs when:

• a person dies because of someone else's "wrongful act, neglect or default," and
• the decedent could have brought a personal injury claim had they survived.

(740 Ill. Comp. Stat. § 180/1 (2024).)

For the most part, Illinois law isn't concerned with how, exactly, the death happened. As long as it resulted from some "wrongful" act or omission, its a wrongful death. Don't get hung up on the "could have brought a personal injury claim" requirement, either. Any time a person dies because of someone's wrongful behavior, they would have been able to bring a personal injury claim had they survived.

(Learn more about proving liability in a wrongful death case.)

Who Files and Benefits From an Illinois Wrongful Death Lawsuit?

An Illinois wrongful death lawsuit must be filed by the personal representative of the decedent's estate. If the decedent died with a will ("testate"), the personal representative will be named in the will. When a decedent dies "intestate" (without a will), the probate court will appoint a personal representative to handle any wrongful death claim and wind up the decedent's affairs.

A wrongful death lawsuit is filed for the "exclusive benefit" of the decedent's "surviving spouse and next of kin." The Act doesn't define "next of kin," but as a practical matter, it will be limited to surviving relatives who can prove they were financially dependent on the decedent. Parents who adopt a child, and adopted children themselves, are considered next of kin the same as natural parents and children.

How is each survivor's share of the wrongful death damages calculated? There are a couple of possibilities. First, the surviving spouse and next of kin can agree on a distribution.

Second, when family members can't agree, the court will determine the degree of each surviving relative's dependency on the decedent. The court holds a hearing, and each survivor who wants a share of the damages must present evidence showing how much support they received, and expected to receive in the future, from the decedent.

When a minor child or other legally disabled survivor receives a share of damages that's greater than $5,000, the funds must be placed into a custodial account and administered under the supervision of the probate court.

(740 Ill. Comp. Stat. §§ 180/2(a)-(c), (f); 180/2.1 (2024).)

Types of Damages You Can Collect in an Illinois Wrongful Death Case

According to 740 Ill. Comp. Stat. § 180/2(a) (2024), survivors are allowed to collect "fair and just" damages for a wrongful death. Those damages are meant to compensate for both their financial losses, as well as for intangible losses that can be difficult to put into dollars.

Common Wrongful Death Damages

Common Illinois wrongful death damages include:

• funeral and burial expenses
• loss of financial support the decedent would have provided, including lost earnings, gifts, and inheritance
• loss of consortium, meaning the loss of affection, society, and companionship, and in the case of a surviving spouse, the loss of a sexual relationship with the decedent
• loss of instruction, education, and moral training the decedent would have provided to surviving children, and
• survivors' grief, sorrow, and mental suffering.

Punitive damages—meant not to compensate survivors for their losses but to punish extreme or outrageous misconduct—are available in an Illinois wrongful death case. Practically speaking, though, proving you should get them is very difficult, and they're rarely awarded.

No Damage Caps Except When Suing Illinois

Some states cap the damages surviving family members can recover, especially for intangible losses like grief and emotional distress. With one important exception, Illinois doesn't have a wrongful death damages cap.

The exception? If you sue Illinois for wrongful death, your total damages will be capped at $2 million (adjusted annually for inflation) unless the death was caused by negligent operation of a state vehicle. (705 Ill. Comp. Stat. § 505/8 (2024).)

How Long Do I Have to File an Illinois Wrongful Death Lawsuit?

Like all lawsuits, Illinois wrongful death claims are subject to a "statute of limitations," a deadline on your time to file a case in court. For most wrongful death claims, the lawsuit filing deadline is two years from the date of the decedent's death.

(740 Ill. Comp. Stat. § 180/2(d) (2024).)

Different rules might apply when the death was caused by medical malpractice or by government misconduct. (Learn more about statutes of limitations in Illinois personal injury cases.)

Extensions for Intentional Violence or Criminal Misconduct

The statute of limitations deadline is one issue where how the death happened can make a difference. If the decedent died as a result of "violent intentional conduct," a wrongful death suit must be filed within five years of the date of the death. In addition, surviving family members have up to one year to sue after the criminal case is completed when the person who caused the death is charged with:

• first- or second-degree murder
• intentional homicide or voluntary manslaughter of an unborn child
• involuntary manslaughter or reckless homicide
• involuntary manslaughter or reckless homicide of an unborn child, or
• drug-induced homicide.

(740 Ill. Comp. Stat. § 180/2(e) (2024).)

What Happens If You Miss the Lawsuit Deadline?

The statute of limitations has one job: To kill claims that aren't filed in time. Miss the statute of limitations and, absent an extension that gives you more time, your wrongful death claim is legally dead. Nothing you do will bring it back to life. Try to file a lawsuit after time runs out and the other side will ask the court to dismiss it. The court will have no choice but to grant that request. Worse still, the court might sanction (penalize) you for filing a frivolous court case.

Statutes of limitations are among the most difficult and confusing of all laws. If you're not sure how much time you have to file your wrongful death case, your first call should be to an experienced Illinois wrongful death attorney. This is someone who knows the state's wrongful death laws, including its filing deadlines. Don't delay making the call, because time is the enemy of your claim.

Other Questions About Your Wrongful Death Case

Here are answers to some other questions you might have about bringing an Illinois wrongful death claim.

Where Do I File the Lawsuit?

Unless you're suing Illinois, your lawyer will file your wrongful death suit in the Illinois Circuit Court, the state's main trial court. The correct "venue," or location, is probably the court closest to where the defendant lives or has its main place of business, or where the event that caused the death happened.

When your wrongful death case is against Illinois, you must sue in the Court of Claims. Other special rules apply as well. (Learn more about claims against the government in Illinois.)

What If the Decedent or a Surviving Family Member Is Also at Fault?

Illinois is a "modified" comparative negligence state. When an injured party—in a wrongful death case, the decedent or one of the decedent's surviving family members—is also to blame for the decedent's death, the wrongful death damages must be reduced by their percentage of the total fault. But if they're more than 50% to blame, that ends the case completely. No damages can be collected.

For example, assume the decedent was killed in a car wreck. After a trial, the jury decides the decedent was 25% at fault for the collision, while the other driver was 75% to blame. Jurors assess the surviving family members' total damages at $1 million. The court will reduce that total by the decedent's share of the negligence: $1 million - $250,000 (25% of the total) = $750,000. The survivors will collect $750,000.

What's the result if the decedent is found to be 51% (or more) responsible? The survivors collect zero damages.

Now, suppose that the decedent's son, who survived the accident, was driving the car. Jurors conclude that the son was 25% negligent. The son's share of the wrongful death damages will be reduced by 25%. Had jurors found the son 51% or more to blame, he would collect no wrongful death damages.

(740 Ill. Comp. Stat. § 180/2(g)-(h) (2024).)

Does Illinois Allow a Survival Action, Too?

Yes. Illinois has a separate Survival Act. When death wasn't instantaneous, the personal representative can bring a survival action alongside the wrongful death claim to collect damages the decedent suffered up to the time of death.

Do I Need a Lawyer for a Wrongful Death Case?

In a word: Yes. A wrongful death case is like two cases in one. First, you have to prove that someone's intentional or negligent wrongdoing killed the decedent. Second, while you're busy doing that, you also have to satisfy all the statutory wrongful death requirements. And if that's not enough, you'll have to comply with a variety of court rules that are, at best, difficult to understand and apply.

Chances are that your opponent will be represented by counsel who know their way around wrongful death claims. It won't be a fair fight unless you've got legal help on your side, too. When you're ready to move forward with your claim, here's how to find a lawyer who's right for you.